Citation Nr: 1116071
Decision Date: 04/25/11 Archive Date: 05/05/11
DOCKET NO. 09-48 601 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Whether new and material evidence has been submitted to reopen a claim for service connection for herniated lumbar disc.
2. Whether new and material evidence has been submitted to reopen a claim for service connection for left knee condition, to include as secondary to herniated lumbar disc.
3. Entitlement to service connection for herniated lumbar disc.
4. Entitlement to service connection for postoperative residuals of cervical injury.
5. Entitlement to an increased evaluation for gunshot wound right lower leg and knee, muscle group XI, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
R. Poulson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1977 to July 1983.
This matter is before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
In April 2003, the RO declined to reopen the Veteran's claims for service connection for low back pain and left knee condition. The Veteran did not file a Notice of Disagreement (NOD). In October 2008, the Veteran filed a claim for service connection for a back condition and left knee condition. The RO did not address the back claim as new and material evidence, but instead denied service connection for herniated lumbar disc in an April 2009 rating decision. The RO also declined to reopen the Veteran's claim for service connection for left knee condition, denied service connection for postoperative residuals of cervical injury, and denied an increased evaluation for gunshot wound right lower leg and knee, muscle group XI.
In March 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claim folder.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The reopened issue of entitlement to service connection for herniated lumbar disc, as well as the issue of entitlement to an increased evaluation for gunshot wound right lower leg and knee, muscle group XI, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In March 2011, prior to the promulgation of a decision, the Veteran testified that he wished to withdraw the issue of service connection for postoperative residuals of cervical injury.
2. In an April 2003 rating decision, the RO declined to reopen the Veteran's claims for service connection for low back pain and left knee condition. The reason for the declination with respect to the left knee condition was that there was no showing of a current disability. The Veteran did not appeal this decision, and it is now final.
3. Evidence received since the April 2003 rating decision with respect to the Veteran's lumbar disability is not cumulative and raises a reasonable possibility of substantiating the claim for herniated lumbar disc.
4. Evidence received since the April 2003 rating decision with respect to the left knee claim is new but does not, by itself or in conjunction with evidence previously assembled, relate to an unestablished fact necessary to substantiate the claim; namely that the Veteran has a current knee disability. It does not raise a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the claim for service connection for postoperative residuals of cervical injury have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010).
2. New and material evidence has been received and the criteria for reopening the claim for a herniated lumbar disc have been met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156(a) (2010).
3. New and material evidence has not been received and the criteria for reopening the claim for a left knee condition have not been met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Withdrawal
The Veteran withdrew the issue of service connection for postoperative residuals of cervical injury. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Accordingly, the Board does not have jurisdiction of this issue.
II. Notice and Assistance
Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A.
§ 5103(a).
The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004).
The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
The service connection claim for herniated lumbar disc based on new and material evidence has been considered with respect to VA's duty to notify and assist, including Kent v. Nicholson. Given the Board's finding that new and material evidence has been secured to reopen this claim, no conceivable prejudice to the Veteran could result from this adjudication, regardless of whether the Veteran has been provided the notice and assistance required by law and regulation. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
With respect to the left knee and gunshot wound claims, the RO provided the Veteran pre-adjudication notice by letter dated in November 2008. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The notice included the general criteria for substantiating an increased rating claim, as well as the applicable diagnostic codes for the increased rating. The letter was also in compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006).
In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).
VA has obtained all available service treatment records (STRs) and VA treatment records, and has assisted the Veteran in obtaining evidence. He was afforded the opportunity for a personal hearing. A VA examination was not provided with respect to the left knee claim. In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A medical examination is necessary when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence, which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. 38 U.S.C.A. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The record does not show any evidence of a current left knee disability. Under these circumstances, VA's duty to assist doctrine does not require that a veteran be afforded a medical examination as there is no reasonable possibility that a VA examination would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, a VA examination is not warranted for the left knee claim. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claim file; and the Veteran has not contended otherwise.
VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claims at this time.
III. New and Material Evidence
If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible").
The Veteran seeks to reopen his service connection back and left knee claims, which were originally denied by the RO in July 1997 because the evidence did not establish a chronic back disability or link the left knee disability to service. The RO declined to reopen both claims in April 2003 because new and material evidence had not been submitted. The Veteran did not file a notice of disagreement and the April 2003 rating decision became final.
The additional evidence considered at the time of the last final RO decision in April 2003 consisted of private treatment records from Trinity Hospital Family Clinic.
The Veteran filed claims to reopen entitlement to service connection for back and left knee conditions in October 2008.
Evidence considered since the April 2003 rating decision consists of the Veteran's December 2009 lay statement, his representative's December 2010 statement, and the Veteran's March 2011 testimony. Also considered were private treatment records from the Tennessee Spine Center, Inc. dated July 1993, which show that the Veteran was treated for a work-related back injury, and VA treatment records from March to September 2009, which show that the Veteran underwent a lumbar laminectomy at L4-L5 in April 2009 for treatment of right posterolateral herniation at L4-L5 with lumbar spinal stenosis.
The evidence received since the last final RO decision with respect to the left knee claim is new, as it did not exist at the time of the prior determination in April 2003. However, this evidence is immaterial because the medical evidence does not relate to the left knee. The Veteran and his representative contend that he has an antalgic gait caused by his lumbar spine disability, and that this in turns affects his left knee condition. The Veteran is competent to report the presence of an antalgic gait. See Barr v. Nicholson, 21 Vet. App. 303 (2007). April 2009 VA treatment records confirm that the Veteran has an antalgic gait associated with his back disability. The Veteran's representative notes that the February 1997 VA examination included a finding of left knee lateral instability. While that is true, it cannot be considered with respect to meeting the criteria for reopening the claim; namely, the absence of a current knee disability. The VA records submitted since April 2003 contain no treatment or findings regarding the existence of a current left knee disability. New and material evidence has not been received to reopen the previously denied claim for service connection for a left knee condition; the benefit of the doubt doctrine does not apply; and reopening the claim is not warranted.
The evidence received since the last final RO decision with respect to the back claim is also new, as it did not exist at the time of the prior determination in April 2003. This evidence is also material. STRs establish that the Veteran first sought treatment for low back pain in January 1978. He was subsequently treated for low back pain on several occasions prior to his 1983 discharge, the most recent being December 1982. Some of these STRs include a diagnosis of chronic back pain. He currently has a diagnosis of right posterolateral herniation at L4-L5 with lumbar spinal stenosis. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasizes that the regulation is designed to be consistent with 38 C.F.R.
§ 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, in this case a current diagnosis, as it would "force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence has been received as to the prior procedural defect of there being no current disability. Thus, there is sufficient evidence to warrant a reopening of the claim based on the new and material evidence establishing a current diagnosis. Reopening of the service connection claim for herniated lumbar disc is warranted. 38 U.S.C.A. § 5108.
ORDER
Service connection for postoperative residuals of a cervical injury is dismissed.
New and material evidence having been submitted, the petition to reopen a claim for service connection for herniated lumbar disc is granted.
New and material evidence not having been submitted, the petition to reopen a claim for service connection for a left knee condition is denied
REMAND
Gunshot Wound
The Veteran's gunshot wound right lower leg and knee is evaluated as 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 5311. Diagnostic Code 5311 pertains to Muscle Group XI. Muscle Group XI includes the muscles involved in the propulsion and plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. In order to get the next higher evaluation, the evidence must show that the disability is moderately severe. The last time the Veteran was evaluated for his gunshot wound for compensation and pension purposes was in November 2009. It was reported at that time that he had occasional pain and stiffness in his left knee, but that it did not significantly restrict knee motion. The Veteran testified during his March 2011 hearing that his disability has gotten worse since the November 2009 examination. He stated that the pain, numbness, and tingling has increased. Accordingly, a new examination is warranted to properly determine the present severity of the disability.
Lumbar Spine
Given the diagnosis of right posterolateral herniation at L4-L5 with lumbar spinal stenosis that is of record and the evidence of treatment for chronic low back pain during service, the Veteran must be accorded a VA orthopedic examination to determine the nature, extent and etiology of his current lumbar disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006).
The claim file contains records from the Nashville VAMC from March 2009 to September 2009. However, the initial March 2009 record states that the Veteran was "familiar to the neurosurgical service," which implies that additional treatment records exist. Furthermore, the Veteran testified during his March 2011 hearing that an MRI of his right leg had been scheduled for the near future. All VA records are constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, all the Veteran's VA treatment records should be obtained and associated with the claim file.
Accordingly, the case is REMANDED for the following action:
(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.)
1. Obtain outstanding VA treatment records from the VAMC Nashville from October 2007 to February 2009, and from October 2009 to the present.
2. Schedule the Veteran for a VA orthopedic examination by an appropriate medical professional. The examiner must identify all diagnosed disabilities of the lumbar spine and, considering all the evidence, provide an opinion as to whether it is at least as likely as not that any diagnosed lumbar spine disability is related to service.
Specifically, the examiner is to determine whether any diagnosed lumbar spine disability began during service or is etiologically related to any incident of active service, to include: any lifting injuries sustained during advanced infantry training; a fall from a jeep; and/or sleeping on a hard surface. The examiner must consider service treatment records dated January, August, and October 1978; January and May 1979; February, July, and December 1982; a September 1980 examination; a June 1983 separation examination; a July 1993 treatment record from the Tennessee Spine Center, Inc.; and a February 1997 VA general medical examination.
The claim folder and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination.
A complete rationale must be provided for all opinions.
If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
3. Schedule the Veteran for an examination of the residuals of his gunshot wound to the right lower leg and knee by an appropriate medical professional. The examiner is to perform all necessary testing and report all manifestations of gunshot wound residuals. The claim folder and a copy of this remand must be made available to and reviewed by the examiner.
4. Thereafter, any additional development deemed appropriate should be accomplished. Then, re-adjudicate the claims. If either of the claims remains denied, issue a supplemental statement of the case (SSOC) and allow an appropriate period of time for response.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs